Madras High Court
Jayaprakash vs R.V.Sathiyamoorthy on 14 August, 2019
Author: C.Saravanan
Bench: C.Saravanan
CRP.(PD)Nos.1862 & 1863/2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 02.08.2019
PRONOUNCED ON : 14.08.2019
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P.(PD).Nos.1862 & 1863 of 2015
and M.P.Nos.1 & 1 of 2015
1.Jayaprakash
2.Durairaj
3.Navaneethakrishnan
4.Vijayashanmugam
5.Dr.Anand
6.Ramya
7.N.Ramasamy
8.N.Rajendrakumar @ Raja
9.N.Radha Bai
10.P.Godhanapani
11.K.Ramesh
12.K.Ravichandran
13.K.Sankar
14.K.Murali
15.T.Sumathi .. Petitioner in both CRPs.
vs.
1.R.V.Sathiyamoorthy
2.Nandakumar
3.Devakrishnaraj
4.Bala Gangadhara Thilakar
5.Saroja
6.S.Bagyalakshmi
7.S.Chandrikadevi .. Respondents in both CRPs.
http://www.judis.nic.in
1/16
CRP.(PD)Nos.1862 & 1863/2015
Prayer in both CRPs.: Civil Revision petitions filed under Article 227 of the
Constitution of India, to strike out the plaint in O.S.Nos.149 and 197 of 2015 on
the file of the Principal District Munsif Court, Salem from the role of registry.
For Petitioners : Mr.K.S.Sankhar Murali
( In both CRPs.)
For R1 : Mr.v.Raghavachari
For R2 to R4 : Mr.T.Ramakrishnan
For R6 : M/s.B.Balamurugan
(In CRP.No.1863/15)
For R7 : M/s.T.Dharani
(in CRP.No.1863/15)
C O M M ON O R D E R
By this common order both the Civil Revision Petitions are being disposed. In these two Civil Revision Petitions, the petitioners have prayed to strike out the respective plaints in O.S.Nos.149 & 197 of 2015 on the file of the Principal District Munsif Court, Salem.
2. Status of the parties to the present civil revision petitions are as follows:
S.No. CRP.No.1862/2015 O.S.No.149/2015 1 Petitioners Defendant Nos.1 to 5 2 Respondent No.1 Plaintiff 3 Respondent Nos.2 to 7 Defendant Nos. 16 to 21 http://www.judis.nic.in 2/16 CRP.(PD)Nos.1862 & 1863/2015 S.No. CRP.No.1863/2015 O.S.No.197/2015 1 Petitioners Defendant Nos.1 to 5 2 Respondent No.1 Plaintiff 3 Respondent Nos.2 to 4 Defendant Nos. 16 to `8
3. O.S.No.149 of 2015 was filed for a permanent injunction to restrain the petitioners and their men from in any way interfering with 1st respondent’s peaceful enjoyment of the suit property from evicting from the suit property, except under due process of law.
4. O.S.No.197 of 2015 filed to direct the petitioners herein to execute a registered sale deed in respect of suit schedule property in favour of the 1st respondent (plaintiff) and in the name of rest of the respondents (Defendant Nos. 16-18).
5. The petitioners seek to strike out respective plaint from the rolls of suit register of the Principal District Munisif Court, Salem under Article 227 of the Constitution of India on the ground that the said court ought not to have numbered the respective suits as the rights canvassed in the respective suits cannot be agitated in the light of prior judgment and decree dated 13.5.2004 passed by the 1st Additional District Judge, Salem in O.S.No.3 of 2003. http://www.judis.nic.in 3/16 CRP.(PD)Nos.1862 & 1863/2015
6. It was submitted that the judgment and decree dated 13.5.2004 passed in O.S.No.3 of 2003 was affirmed by this court in A.S.No.502 of 2005 by its order dated 29.8.2011. Special Leave Petition filed by the 1st respondent was dismissed by the Hon’ble Supreme Court at the stage of condonation of delay.
7. The petitioners are the children and grandchildren of late V.R.Venugopal Chettiar through his first wife Late Kannammal while the respondents are the children of late V.R.Venugopal Chettiar through his second wife Saroja. Late V.R.Venugopal Chettiar’s first wife Late Kannammal died in the year 1956.Later late V.R.Venugopal Chettiar had married Saroja the mother of the respondents and others.
8. The petitioners had earlier filed O.S.No.263 of 1994 (later renumbered as O.S.No.3 of 2003) before the 1st Additional District Court, Salem to partition the suit schedule property. The said suit was filed against their father late V.R.Venugopal Chettiar during his life time. In the said suit, the 2nd petitioner was arrayed as the 2nd defendant. http://www.judis.nic.in 4/16 CRP.(PD)Nos.1862 & 1863/2015
9. Late V.R.Venugopal Chettiar contested the said suit and alleged that the suit schedule property was purchased as a benami property by him in his first wife Kannammal’s name and that before her death she reconveyed it to him vide an unregistered deed dated 26.4.1956.
10. In O.S.No.3 of 2003, a preliminary decree was passed by the 1st Additional District Judge in O.S.No.3 of 2003 on 13.5.2004 holding that the property was that of his first wife Kannammal and therefore her children and late V.R Venugopal Chettiar were entitled to equal share as class I heir of Late Kannammal
11. Aggrieved by the preliminary decree, Late V.R Venugopal Chettiar filed A.S.No.502 of 2005 before this Court. During the pendency of the said appeal, late V.R Venugopal Chettiar died. The respondents herein were impleaded as other legal representatives of late V.R Venugopal Chettiar.
12. By an order dated 29.08.2011 in A.S.No.502 of 2005 this Court upheld the judgment and decree of the trial court and rejected the submission of late V.R Venugopal Chettiar that he purchased the suit schedule property as a benami property in the name of his first wife late Kannammal. This stand of http://www.judis.nic.in 5/16 CRP.(PD)Nos.1862 & 1863/2015 late V.R.Venugopal Chettiar that she had re-conveyed it to him by an unregistered deed of conveyance dated 26.03.1956 before her death was also rejected. It was held that the property was a personal property of late Kannammal.
13. The 1st respondent thereafter preferred a Special Leave Petition with a delay. By an order dated 6.2.2012, the Hon’ble Supreme Court dismissed the application for condonation of the delay in C.C.No.1902 of 2012. Thereafter, the petitioners filed I.A.No.40 of 2013 for passing final decree in the above suit.
14. In I.A.No.40 of 2013 in O.S.No.3 of 2003, the 1st respondent filed I.A.No.61 of 2015 to defer the Advocate Commissioner's visit. The said application was dismissed. The 1st respondent thereafter filed O.S.Nos.149 of 2015 and O.S.No.197 of 2015. It is under these circumstances, these two suits field by the 1st respondent have been challenged. It is stated that both the suits are an abuse of court proceeding and re -litigation of the issue settled in O.S.No.3 of 2003.
http://www.judis.nic.in 6/16 CRP.(PD)Nos.1862 & 1863/2015
15. Heard the learned counsel for the petitioners and the respondents. Short point that arises for consideration in these two Civil Revision Petitions is whether the petitioner’s are entitled for the relief.
16. It is submitted that there is a re-litigation of stale issue in the two suits viz. O.S.No.149 and 197 of 2015 by the 1st respondent even though the earlier partition suit in O.S.No.3 of 2003 filed by the petitioners viz., the children of late Kannammal claiming their share in the suit schedule property from their father late V.R.Venugopal Chettiar during his lifetime was decreed.
17. According to the learned counsel for the petitioner, the court ought not to have numbered the respective suits in view of the issue having attained finality in A.S.No.502 of 2005.
18. It is submitted that O.S.No.197 of 2015 to execute the sale deed in respect of the suit schedule property in favour of the respondents herein by the petitioners on the strength of the alleged re-conveyance deed dated 26.04.1956 allegedly executed by late Kannammal, the first wife of late V.R Venugopal Chettiar in favour of late V.R Venugopal Chettiar cannot be countenanced in view of the Judgment and decree in O.S.No.3 of 2003 wherein http://www.judis.nic.in 7/16 CRP.(PD)Nos.1862 & 1863/2015 it has been held that late V.R.Venugopal Chettiar had not proved execution of the said deed by his first wife Late Kannammal before her death.
19. It is submitted that the suit was originally filed in the year 1994 the preliminary decree was passed on 13.5.2004 and despite a lapse of 15 years, the petitioners are yet to enjoy the fruits of the said decree.
20. It is further submitted that in view of the two suits, the final decree applications filed by the petitioners have been kept pending. It is submitted that the two suits filed by the 1st respondent are nothing but an abuse of court proceeding.
21. It is submitted that the court erred in numbering them even though the respective plaint discloses judgment and decree passed by the 1 st Additional District Judge, Salem in O.S.No.3 of 2003 on 13.5.2004 holding the property in respect of which the relief was sought was in the name of Late Kannammal the first wife of Late V.R.Venugopal Chettiar. http://www.judis.nic.in 8/16 CRP.(PD)Nos.1862 & 1863/2015
22. Learned counsel for the petitioner relied upon the following decisions of the Hon’ble Supreme Court and that of this court to state that this is a fit case for invocation of power under Article 227 of the Constitution of India and to strike out the respective plaints in the respective suits on the ground that apart from being vexatious allows the respondents to abuse the process of court:
" i) T.Arivandandam vs. T.V.Satyapal and another (1977) 4 SCC 467
ii) P.S.K.Kanagaraj and 3 others vs. Kamaraj and another 1997 -3-L.W.909
iii) Marappa Gounder and two others vs. Palaniammal and 7 Others 1997-3-L.W.917
iv) Nesammal and another vs. Edward and another, 1998 (III) CTC 165
v) Hindustan Photo Films Manufacturing Co., Ltd., rep.by Its Managing Director vs. R.Lakshmanan, 1998 (11) CTC 474
vi)P.Chenchu Ramiah vs. A.M.Noohu Nachia and another, 1999-1-L.W.37
vii) Seeni alias Sundarammal vs. Ramasamy Poosari and 2 others, 2000 (III) CTC 74
viii) K.K.Swaminathan vs. Srinivasagam, 2004-1-L.W.250
ix) Tamil Nadu Handloom Weavers Co-operative Society rep.by its Managing Director, Chennai vs. S.R.Ejaz, rep.by his Power Agent, Muralidhar T.Balani, (2009) 8 MLJ 991
x) Shalini Shyam Shetty and another vs. Rajendra Shankar Patil, (2010) 8 SCC 329 http://www.judis.nic.in 9/16 CRP.(PD)Nos.1862 & 1863/2015
xi) Sub Continental Equities Limited, Rep.by its Power Agent, Mr.Siddharth Pruthi vs. R.V.D.Ramiah and others, 2016-3-L.W.419
xii) Pastor Ambrose, Secretary, South East India Union of 7th day Adventists and another vs. Edward Daniel Chandrasekar and others, 2018-2-L.W.500
xiii) Mani Alias Nagamani; Saravanan; Raja Rajeswari Alias Easwari vs. P.Ramakrishnan, 2018(2) MWN (Civil) 172 (Mad)"
23. Per Contra, the learned counsel for the respondent submits that there is neither an abuse of court proceeding nor it can be said that the respective suits are not maintainable. There is no re-litigation.
24. It was further submitted that no fault can be attributed to the Principal District Munsif Court while numbering the suit. The court will merely go by the averment in the plaint and in case the petitioners are of the view that the suits are barred under law, it was open for the petitioners to invoke the jurisdiction of the court under Order 7 Rule 11 of CPC to reject the plaint.
25. It was further submitted that instead of approaching the said court, the petitioners are trying to scuttle the said suit by invoking the jurisdiction of this court under Article 227 of the Constitution of India and bye-passing the alternate remedy available in law.
http://www.judis.nic.in 10/16 CRP.(PD)Nos.1862 & 1863/2015
26. It was submitted that the jurisdiction of this Court under Article 227 of the Constitution of India can be invoked as per well defined principal of law and relief has to be granted with caution and only in rare case where there is no alternate remedy. Learned counsel for the respondent relied upon the following decisions of the courts:-
"i) R.Arun vs. D.manivannan and Ors. C.R.P.(MD)No.563 of 2015 dated 16.02.2017
ii) Amaravathy Cranes and Structural Pvt.Ltd., and Ors.
Vs. Rajendra Raja and Ors. CRP.(PD)Nos.1872 & 910 of 2012 dated 18.02.2013 "
27. I have considered the arguments of the learned counsel for the petitioners and the respondent.
28. Litigations arising out of sharp practices by clever drafting of plaint are to be quelled at the very inception as otherwise precious judicial time are wasted in deciding the stale issues which have already attained finality. This court in Hindustan Photo from Manufacturing Co Ltd versus R Laxman 1998 (11) CTC 474 has held that when on the same set of facts based on the same cause of action, 2nd suit is filed, it has to be struck off. The Hon’ble Supreme Court in Shalini Shyam Shetty versus Rajendra Shanker Patil (2010) 8 SCC 329 has held Article 226 can be invoked by the High Court suo motu as a custodian http://www.judis.nic.in 11/16 CRP.(PD)Nos.1862 & 1863/2015 of justice.
29. Subsequent suits based on same cause of action are barred and are really nothing but an abuse of court proceedings. It has been held that the Courts are not incompetent to exercise their power under Article 227 of the Constitution of India to strike off plaints which are intended to re-agitate a settled issue.
30. The courts have also held that where litigation is frivolous or results in an abuse of court process it has to be judged from an angle of interest of justice and public policy.
31. In fact, statutory provisions contained in section 11 of CPC also give powers to the court to quell litigations where the issue was substantially in issue in the previous suit which has been decided on an earlier occasion.
Therefore, to ask the petitioner to file an application under Order 7 Rule 11 of C.P.C. will give a fresh lease of life to litigation which is not desirable in the facts and circumstances of the present civil revision petitions.
32. In my view, two suits filed by the 1st respondent were no doubt intended divert the attention of the court from passing orders in final decree application filed by the petitioner after a preliminary decree was passed in http://www.judis.nic.in 12/16 CRP.(PD)Nos.1862 & 1863/2015 O.S.No.3 of 2003 and after all appellate remedy were closed.
33. Attempt of the 1st respondent was to resurrect the dispute by filing fresh suit to further delay the eventual passing of final decree in O.S.No.3 of 2003.
34. The issue had attained finality determining the rights of the parties. It cannot be permitted to be re-agitated to frustrate the rights of a successful party in a subsequent suit.
35. Therefore, collateral proceedings initiated by the 1st respondent in O.S.No.149 of 2015 and O.S.No.197 of 2015 before the Principal District Munsif Court for an injunction and for further relief for execution of a sale deed in terms of unregistered deed dated 26.3.1956 purportedly executed re-conveying the suit schedule property to late V.R.Venugopal is nothing but a re-litigation and an abuse of court proceeding. All further rights over the property are to be decided only in the application for passing final decree in O.S.No.3 of 2003.
36. In my view, both O.S.Nos.145 and 197 of 2015 were intended to prolong the litigation by way of re-litigation and are indeed an abuse of court proceeding. The petitioner has made out a case for interference under Article http://www.judis.nic.in 13/16 CRP.(PD)Nos.1862 & 1863/2015 227 of the Constitution of India in C.R.P.Nos.1862-1863 of 2015.
37. Therefore, I am inclined to grant relief to the petitioners by directing the Principal District Munsif Court, Salem to strike out the plaint in O.S.No.149 of 2015 and O.S.No.197 of 2015 forthwith.
38. To meet the ends of justice, I direct the 1 st Additional District Court (Fast Track Court No.I) Salem or such other the court before which applications for passing final decree is presently pending at the behest of the petitioner pursuant to preliminary judgment and decree dated 13.5.2004 in O.S.No.3 of 2003 be dispose without further delay within a period of six months from the date of receipt of a copy of this order.
39. In fine, it is ordered as follows:-
(i) Both Civil Revision Petitions are allowed.
Consequently, O.S.Nos.197 and 149 of 2015 pending on the file of the Principal District Munsif Court, Salem are directed to be struck off forthwith from the register of the plaints in the Principal District Munsif Court, Salem.
http://www.judis.nic.in 14/16 CRP.(PD)Nos.1862 & 1863/2015
(ii) Application for passing final decree pursuant to preliminary judgment and decree dated 13.5.2004 in O.S.No.3 of 2003 pending at the behest of the petitioners are directed to be disposed within a period of six months from date of receipt of copy of this order.
(iii) Consequently, connected miscellaneous petitions are closed. No cost.
14.08.2019
Index :Yes/No
Internet :Yes/No
Speaking : Non Speaking order
kkd
To
Principal District Munsif Court,
Salem.
http://www.judis.nic.in
15/16
CRP.(PD)Nos.1862 & 1863/2015
C.SARAVANAN,J.
kkd
PRE-DELIVERY COMMON ORDER IN
C.R.P.(PD).Nos.1862 & 1863 of 2015
and M.P.Nos.1 & 1 of 2015
14.08.2019
http://www.judis.nic.in
16/16